Citation Nr: 21071866 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-06 409 DATE: December 1, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for supraventricular arrhythmia is denied. Entitlement to an initial compensable rating for hypertension is denied. Entitlement to an initial rating of 50 percent for migraines is granted. REMANDED Entitlement to an initial compensable rating for a right shoulder strain is remanded. FINDINGS OF FACT 1. The Veteran's supraventricular arrhythmia is not manifest by symptoms contemplated by the 30 percent rating criteria 2. The Veteran's hypertension is not manifest by diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 3. The Veteran's migraines are manifest by symptoms contemplated under the 50 percent rating criteria. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for supraventricular arrhythmia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.104, Diagnostic Code 7010. 2. The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7101. 3. The criteria for an initial rating of 50 percent for migraines have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from November 2012 to November 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal of an October 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in July 2021, and a transcript of this hearing is associated with the claims file. Increased Rating Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155, 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 1. Entitlement to an initial rating in excess of 10 percent for supraventricular arrhythmia is denied. The Veteran seeks an increased initial rating for his service-connected supraventricular arrhythmia, which is currently rated at 10 percent under DC 7010. Under DC 7010, in order to receive a 10 percent rating, the Veteran would need to have permanent atrial fibrillation (lone atrial fibrillation), or one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECK or Holter monitor. A 30 percent rating requires paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by ECG or Holter monitor. The Veteran underwent a VA examination in September 2016, and the examiner noted the Veteran had a diagnosis of supraventricular arrhythmia. The Veteran's condition requires continuous medication to control it. The examiner noted the Veteran had an intermittent or paroxysmal atrial fibrillation more than 4 times within the previous 12 months, and these episodes were documented via an electrophysiology (EP) study. The Veteran has also had a supraventricular tachycardia on an intermittent or paroxysmal basis more than 4 times over the previous 12 months, as confirmed by an EP study. He also had an EP study in January 2014, which is a non-surgical procedure. During the examination, his heart rate was recorded as 76 beats per minute, and the rhythm, heart sounds, peripheral pulses, and peripheral edema were normal. The examiner ordered an EKG, which showed the Veteran had a sinus bradycardia, and a chest x-ray, which was normal. The examiner also assessed the Veteran's METs via interview, noting the Veteran had dyspnea, and the interview based METs test showed the Veteran had greater than 5 to 7 METs, which was consistent with activities such as walking one flight of stairs, golfing without a cart, mowing the lawn with a push mower, and heavy yardwork such as digging. The Veteran provided additional medical records noting the Veteran was on medications to control his supraventricular arrhythmia, paroxysmal atrial fibrillation episodes, and other symptoms the Veteran experienced due to his condition. During his July 2021 hearing testimony, the Veteran explained how he was on multiple medications for his supraventricular arrhythmia. He stated that these medications do work, although he occasionally is late taking a medication, and it is during those times that he can feel the heart palpitations. He also underwent a study to try and determine which part of his heart was misfiring during 2014 although this study had to be called off because he went into atrial fibrillation during the study. After this, it was determined it would be better to find a medication that treated his symptoms than it would be to keep going back in to see what exactly was wrong with his heart because his doctors feared causing additional damage. After reviewing the evidence of record, the Board finds the Veteran's supraventricular arrhythmia is more consistent with the symptoms contemplated by the 10 percent rating criteria. The September 2016 examiner noted the Veteran had more than four instances of paroxysmal atrial fibrillation over the previous 12 months, these episodes were recorded via an EP study. However, although the 30 percent rating criteria lists paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year, these episodes must be documented by either an ECG or Holter monitor, and the Veteran's episodes were not so documented. Additionally, while the Veteran's private treatment records note episodes of atrial fibrillation, there is no evidence these episodes were documented using an ECG or a Holter monitor. As such, because the Veteran's paroxysmal atrial fibrillation episodes have not been documented by an ECG or Holter monitor, these episodes do not fulfill the 30 percent rating criteria, and therefore a 30 percent rating is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable here. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to an initial compensable rating for hypertension is denied. The Veteran seeks an increased initial rating for his service-connected hypertension, which is currently rated as noncompensable under DC 7101. Under DC 7101, in order to receive a 10 percent rating, the Veteran would need to have a diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating requires a diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating requires a diastolic pressure predominantly 120 or more. A 60 percent rating requires a diastolic pressure predominantly 130 or more. The Veteran underwent a VA examination in September 2016, during which the examiner noted the Veteran had a current diagnosis of hypertension. The examiner noted the Veteran was on medication to control his hypertension, and the blood pressure readings taken during the exam were 126/82, 122/80, and 122/82. The Veteran submitted private treatment records noting his diagnosis of hypertension, as well as the medications prescribed to control his blood pressure. During the July 2021 hearing, the Veteran testified that while he was on medications to control his blood pressure, these medications would stop working approximately six to eight months after he started them. His doctors were unsure why these medications stopped working after a short amount of time, and they would switch him to a new medication to keep his blood pressure under control. After reviewing the record, the Board finds that the Veteran's hypertension is most closely approximated by a noncompensable rating. The criteria for a 10 percent rating require the Veteran to either have a diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. However, the Veteran's private treatment records do not establish that he has a diastolic pressure of 100 or more or a systolic pressure of 160 or more at any point during the appeal period. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable here. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to an initial rating of 50 percent for migraines is granted. The Veteran seeks an increased initial rating for his service-connected migraines, which is currently rated as noncompensable under DC 8100. Under DC 8100, a noncompensable rating for migraines is awarded when the Veteran has less frequent attacks. A 10 percent rating is warranted wen the migraines have characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran underwent a VA examination in September 2016, and the examiner noted the Veteran's diagnosis of migraines, including migraine variants. The Veteran reported currently experiencing headaches or migraines at least three times a week, and although he has his medication, it makes him so groggy that he is not sure if it is worse to have the headache or be extremely groggy. His treatment plan includes numerous medications to help control his migraines. The Veteran's reported symptoms include headache pain with constant head pain and pulsating or throbbing head pain; the non-headache symptoms associated with his headaches of nausea, vomiting, sensitivity to light, and sensitivity to sound; head pain lasting less than one day that is on both sides of the head; and characteristic prostrating attacks that occur more than once per month, as well as very frequent prostrating and prolonged attacks due to his migraine or headache pain. The examiner noted the Veteran's headache condition impacts his ability to work because when he has a migraine, he has difficulty concentrating and focusing, and he needs to lie down in a dark room. The Veteran submitted private treatment records pertaining to his headache and migraine symptoms and frequency. In a March 2017 treatment note, the Veteran reported having a migraine that caused him to pass out, and he also went to the emergency room for severe headaches, where he had a CT scan that came back normal. In a May 2017 treatment note, the Veteran reported having mild photophobia and had a history of nausea and vomiting associated with his migraines. He also reported that sleep often helped abate his migraine symptoms, although he also reported recently having headaches almost every single day. During the July 2021 hearing, the Veteran testified that he experienced headaches almost daily with varying severity and experienced a migraine once a week on average. These migraines often take him out, where he cannot continue to work or do whatever activity he was doing, and he often needs to lay down in a dark and quiet space. He explained that if he had a migraine while working, he would usually need to take the rest of the day off; however, because he has some control over his schedule, his employer lets him make up these hours on his own time. If he has a headache during work, he can dim the lights in his office and even call in to a meeting so he can avoid light exposure but still participate. Additionally, the Veteran explained that he did have rescue medication, but it makes him tired, so he does not always want to take it if he is at work or taking care of his children. Further, although he has some control over his schedule for his civilian job, his migraines have impacted his job in the National Guard, and he believes he will be forced to go in front of the medical review board soon due to his migraines, and thus faces potential medical separation. He also reported having received three nerve blocks over the span of about a week and a half the previous summer because his migraine pain was so severe. After reviewing the evidence of record, the Board finds that the Veteran's migraines and headaches are most closely approximated by the 50 percent rating criteria. In the September 2016 examination, the examiner noted that not only did the Veteran have characteristic prostrating attacks averaging at least once a month, but the Veteran's migraines also caused prostrating and prolonged attacks which impacted his ability to work. While the 50 percent rating criteria notes that these prostrating attacks should be productive of severe economic inadaptability and the Veteran remains employed, these attacks do immediately impact his ability to work by causing him to have to leave work early for the rest of the day, if not miss work completely. As such, the Board finds that the Veteran's migraines do, in fact, cause prostrating and prolonged attacks that impact his ability to work, even with additional forms of sick leave and his ability to partially modify his schedule. Additionally, the Veteran's private medical records show the Veteran has consistently reported similar frequency and symptoms of his migraines since at least 2016, Furthermore, the Veteran's July 2021 hearing testimony is both competent and credible when it comes to describing the symptoms he experiences during his headaches and migraines, as well as their impact on his ability to work. As such, the Board finds that the Veteran's migraines are most closely approximated by the 50 percent rating criteria, and a 50 percent initial rating is warranted. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for a right shoulder strain is remanded. The Veteran seeks an increased initial rating for his service-connected right shoulder strain, which currently has a noncompensable rating. The Veteran was afforded a VA examination in September 2016, at which time the examiner noted the diagnosis of a right shoulder strain. The examiner also noted the Veteran reported experiencing flare-ups, describing them as simple soreness that turns into sharp pain during certain movements. The Veteran's range of motion for both arms were all noted as being normal, although the examiner did note pain upon movement in his right shoulder that did not result in or cause functional loss. While there was no sign of localized tenderness in either shoulder, the Veteran's right shoulder had objective signs of crepitus. Neither shoulder had any lost range of motion upon repetitive use testing, and no repeated use over time testing was done. The examiner also noted that while the Veteran reported flare-ups, the examination was not taking place during one. However, the examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability and that the examination was consistent with the Veteran's statements, the examiner did not provide any estimate as to additional loss of range of motion during a flare-up. Additionally, it does not appear that the examiner discussed any passive range of motion movements or pain without weight-bearing, although there is discussion of no pain being noted during weight bearing. The Board finds the September 2016 examination to be inadequate. When a Veteran reports having flare-ups but is not experiencing a flare-up during the examination, the examiner is to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before providing an estimation of any degrees of motion loss during a flare-up, unless this cannot be determined due to a lack of medical knowledge among the medical community at large. Sharp v. Shulkin, 29 Vet. App. 26, (2017). However, while the examiner elicited statements from the Veteran concerning his flare-ups and noted the Veteran's statements as being consistent with the examination, the examiner failed to provide any estimate as to the impact these flare-ups had on the Veteran's range of motion. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The regulation specifically states, "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." While the examiner noted no pain with weight-bearing, the examiner did not address any pain when non-weight-bearing, nor did the examiner address any passive range of motion movements. Because the September 2016 examiner failed to provide an estimate as to any additional loss of range of motion during a flare-up, and because the examiner failed to address passive movement and pain when not weight-bearing, the examination is inadequate. The Board also notes that, during the course of this appeal, the criteria for rating musculoskeletal disabilities changed effective February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Although it is unclear whether any of the changes to the relevant regulations would impact the Veteran's rating for his right shoulder, the Board finds that a new comprehensive VA examination of the right shoulder is warranted in light of the regulatory changes. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for a VA examination with a qualified examiner to determine the current severity and manifestations of the Veteran's right shoulder strain. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing of the right and left shoulders and must include range of motion measurements in active motion, passive motion, with weight-bearing and without weight-bearing unless testing is not practicable or feasible. The examiner is also to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups and then provide an estimate of any additional range of motion loss experienced during a flare-up. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.